' YAHYA AFRIDI, J.---Through this single judgment, we shall dispose of four constitutional petitions, as common questions of law are involved therein. The particulars of the said petitions are as follows:- a) "Syed Abid Hussain Shah and others v. The Chief Secretary, N.-W.F.P, Peshawar and others. (W.P.
No,40 of 2010)
(ii) "Muhammad Miskeen v. The Chief Secretary, K.P.K., Peshawar and others. (W.P. No,409 of 2010).
(iii) "Munir Ahmad v. The Chief Secretary, K. P. K., Peshawar and others. (W.P. No,410 of 2010).
(iv) "Muhammad Rafique v. Government of Pakistan through Secretary Law and Justice Department, Islamabad and others. (W.P. No,456 of 2010).
2. Petitioners are seeking the constitutional jurisdiction of this Court and praying essentially that; "the letter/directive bearing No,SOE-III (E&AD)14-1(II) MNA/2009 dated 17-8-2009 addressed to Director Anticorruption Peshawar issued by respondent No,1 at the behest of respondent No,5 withdrawal of case F.I.R. No,2 dated 16-4-2009 under sections 409/419/420/468/471-A, P.P.C. Read with section 5(2) of P.C. Act, 1947 registered at PS ACE Mansehra and transfer of case to NAB authorities for further investigation without any reference under the NAB Ordinance, and the subsequent issuance of Notices bearing No,1/339/1W11/NAB(F)2597 etc. Dated 17-9-2009 and 12- 10-2009 offering voluntary return option against officials of MDA and others may graciously be ordered to be set aside."
3. The brief and essential facts of the present petitions are that the petitioners are employees of Mansehra Development Authority ("MDA") and vide advertisements published in Daily Mohasib' dated 12-9-2007, Daily `Shimla' dated 12-5-2008 and Daily `Mohasib' dated 12-5-2008, MDA offered for allotment of plots of different sizes available in different sectors of `Ghazi Kot Township', Mansehra ("Project"). In consequence thereof, the petitioners along with others applied for the said offered plots. Initially, a criminal case for illegal allotments of plots in the Project was registered with the Anti-Corruption Department and thereafter the investigation of the said case was transferred to National Accountability Bureau ("NAB"). On taking cognizance of the matter, NAB served upon the petitioners notices offering 'voluntary return' ("Notices"). The contents of the Notices are reproduced below :-- "Subject: Voluntary Return Option-Inquiry against officials of Mansehra Development Authority and others.
(1) The proceedings under the provision of National Accountability Ordinance, 1999 and schedule thereto have been initiated against you and the case is at inquiry stage. Legally, you have an opportunity at this stage to voluntarily come forward and offer to return the gains and assets acquired by you within the meaning of section 25(a), NAO. Under this provision you will not be convicted as an accused and this option shall not be available after the authorization of investigation.
' The assessed market value at the time of allotment was Rs,750,000 while you have only paid Rs,250,000 in violation of the rules and regulations of MDA thus have been cited as illegal beneficiary of an amount worth Rs,500,000.
(3) You are thereby informed that in case you want to avail the opportunity of voluntary return, you are free to apply on the enclosed format within 15 days after receipt of this letter for return of amount Rs,500,000 to Chairman NAB. Otherwise, proceedings under NAO 1999 will be continued against you."
' The petitioners being aggrieved of the Notices, have challenged the same through the instant petitions.
4. It is by now settled that the intricacies and complications involved in 'white collar crime' cannot be dealt with effectively through the traditional methods of inquiry and investigation. Thus, inter alia, the concept of 'voluntary return' has gained significance in investigative techniques used in various jurisdictions. The most recent being introduced in Republic of Kenya titled 'The Anti- Corruption Amnesty and Restitution Regulations Act, 2011'.
5. While in our country, the *National Accountability Bureau Ordinance, 1999 ("Ordinance") provided in section 25 provision for `voluntary return' and 'plea bargaining'. The provisions of section 25 of the Ordinance have evolved, since its original enactment in 1999, wherein it read as follows:-- "25. Voluntary return/plea bargaining:- Where before the commencement of the trial at any time thereafter, with the leave of the Court, the holder of a public office or any other person accused of any offence under this Ordinance voluntarily returns to the NAB, the assets or gains acquired through corruption or corrupt practices and discloses the, full particulars relating thereto, the Chairman NAB, may release the accused person with the leave of the Court, or, proceed with the trial subject to such conditions if any, as may be imposed by the Court."
' Soon after the promulgation of the Ordinance, the vires of various provisions thereof were challenged in the Supreme Court of Pakistan. The apex Court, in its authoritative judgment in the case of Khan Asfandyar Wali Khan and others v. Federation of Pakistan (PLD 2001 SC 607) dilated upon, inter alia, the provisions of section 25 of the Ordinance and held that; "266. A perusal of the Preamble of the NAB Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigation agency; which deals with several aspects of `corruption', etc. The NAB does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of Court. Bargain out of Court is now an established method by which things are settled in several developed societies. It was necessary in cases where the criminal is a potential investor and is interlinked with the economy of the society, he should be given an opportunity to play his role in the society after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the accountability Courts to exercise their judicial power in appropriate proceedings. Rather this is in the nature of the facility provided to the accused. There is nothing wrong with the NAB Ordinance providing for a procedure of bargaining.
267. Moreover, the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Chairman, NAB cannot be ignored straightaway. At the outset, most of the lawyers tend to consider the question of settlement out of Court. There is need. To focus attention on this significant facet of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges levelled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement; compound ability of offence during the course of proceedings by the Courts after protracted litigation is wasteful. Viewed in this perspective, a power has been vested in the Chairman, NAB to facilitate early settlement for recovery of dues through 'plea bargaining' where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. Chairman, NAB/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like the 'plea bargaining' envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance establishing this procedure at the investigation/inquiry, stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended." (emphasis provided)
' In consequence of the verdict of the apex Court in `Asfandyar Wali's' Case (Supra), the first amendment was introduced in section 25 of the Ordinance through National Accountability Bureau (Amendment) Ordinance, 2000 (Ordinance IV of 2000), which read:-- "17. Substitution of section 25, Ordinance XVIII of 1999.---In the said Ordinance, for section 25, the following shall be substituted, namely:-- "25. Voluntary return (plea bargaining) :---Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practices,--
(i) If the trial has not commenced, the Chairman NAB may release the accused; and
(ii) If the trial has commenced, the Court may, with the consent of the Chairman NAB, release the accused.
(2) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution etc., within one month from the date of such deposit."
' Thereafter, the second amendment in section 25 of the Ordinance was made through National Accountability Bureau (Second Amendment) Ordinance, 2000 (Ordinance XXIV of 2000), which reads:-- "10. Anzendment of section 25, Ordinance XVIII of 1999. ---In the said Ordinance, in section 25,--
(a) for clause (ii), the following shall be substituted, namely:- "(ii) if the Court has taken cognizance of the offence or the trial has commenced, the Chairman, NAB may, with the approval of the Court; release the accused. And
(b) after subsection (b), the following new subsection shall be added, namely:- "(c) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of a public office or any other person voluntarily comes forward to return the illegal gain made by him or loss caused by him to the State exchequer through corruption and corrupt practices, the Chairman NAB may accept the offer and after determination of the amount of illegal gain or loss caused, as the case may be, and its deposit with NAB, discharge such person of all his liabilities relating to the matter or transactions in issue: ' Provided that the matter is not under inquiry or investigation or sub judice in any Court of law."
' Finally, the provisions of section 25 of the Ordinance, as it presently stands, reads are as under; "S.
25. Voluntary return (plea bargaining):--- (a), Notwithstanding anything contained in section 15 or in any other law for the time being in force, whereas holder of a public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequences, of any offence under this Ordinance, the Chairman, NAB may accept such offer and after determination of the account due from such person and its deposit with the NAB discharge such person from all his liabilities in respect of the matter or transaction in issue: Provided that the matter is not sub judice in any Court of law.
(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal Notwithstanding anything contained in section 15 or in any other law for the time being in force, whereas holder of a public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequences, of any offence under this Ordinance, the Chairman, NAB, may in his direction, after taking into consideration the facts and circumstance's of the case, accept the offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB, the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned Bank or Financial Institution, Company, body corporate, cooperative society, statutory body, or authority concerned within one month from the date of such deposit."
6. The 'Preamble' of the Ordinance clearly reveals that the Ordinance is aimed to provide for effective measures for the 'detection, investigation, prosecution and speedy disposal of cases involving corruption and corrupt practices'. Accordingly, we can divide the functions of NAB, as provided in the Ordinance, into three different categories namely; detection, investigation and prosecution. The present case deals with first category relating to 'detection'. This is the stage of 'inquiry', duly authorized by the competent officer of NAB on a complaint or information, so received regarding corruption and corrupt practices. It is during this stage that a provision has been provided in the Ordinance, for an opportunity to the person under scrutiny of an inquiry to enter into an 'arrangement' with the NAB authorities for being discharged from the said 'inquiry'. The 'arrangement', so conceived, in the Ordinance has been provided under section 25 and termed as 'voluntary return'. The plain and simple dictionary meaning of the word 'voluntary', as per 'The Oxford Dictionary', is that; Of actions: Performed or done of one's own free will, impulse or choice'
' Whereas, as per 'Black's Law Dictionary', Eighth Edition, the word 'voluntary' means:- ' Done by design or intention, Unconstrained by interference; not impelled by outside influence'.
' Thus there can be no question of any duress, coercion or threat to be imposed by any officer of the NAB upon the person, who is under an 'inquiry', so as to extract a commitment of the 'voluntary return', stipulated under section 25 of the Ordinance. It is simply an 'offer' made by the person concerned, which if 'accepted', by NAB, would constitute a valid contract. The 'consideration' of which is the return of the illegal gains made by the person to the NAB and finally to the respective department of the Government. This matter was also dealt with by the D august Supreme Court of Pakistan in Syed Ali Nawaz Shah v. The State (PLD 2003 SC 837), it has explicitly explained that; ' "The examination of the statutory provision on the subject in the light of the verdict given by this Court would reveal that policy of law is that plea bargain must be executed in writing in plain and express words showing the intention to avail the benefit of section 25 of the Ordinance which must be voluntary and ,free of an element of threat, pressure, compulsion and duress. The Court may direct the discharge or release of an accused person during the investigation/inquiry or at any subsequent stage before or after the investigation/inquiry or at any subsequent stage before or after the commencement of the trial if he enters into a plea bargain which is a compromise in the nature of compounding the offence. The plea of bargaining being a guilty plea, the agreement of the accused with prosecution must contain the essential elements of offer and acceptance in express words and, the Court must pass a speaking and proper order, of its approval. The general law is that if an accused pleads guilty to the charge at the trial, he can be straightaway convicted and sentenced but the conviction and sentence on the basis of an admission made by an accused is an ancillary proceedings before commencement of the trial would not be sustainable.
However, the concept of plea bargain in the Ordinance is slightly different as an accused can negotiate such plea during the course of inquiry/investigation or at any subsequent stage before or after the commencement of the trial or in appeal. The plea bargain is not like a civil contract between the parties rather it contains the elements of culpability of crime as result of which a person facing accusation under the Ordinance, on entering such plea saves himself from conviction and substantive sentence but entails the penalties provided in section 15 of the Ordinance and this is well-known principle of Criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence."
' It was further held in the said judgment (Supra) that; "We may point out that the plea bargain being a sort of guilty plea cannot be presumed without an express offer of accused and its acceptance in clear words by the prosecution and the mere refund of alleged ill-gotten money as a consideration for grant of bail would not amount to admit the criminal liability and enter into plea bargain."
The clear mandate provided under section 25 of the Ordinance and the 'ratio decidendi' of Asfandar Yar Wali and Syed Ali Nawaz Shah cases (Supra) it is but crystal clear that the Notices issued by the NAB providing an opportunity to the petitioners to opt for 'voluntary return' are 'intra vires'. The Notices served by NAB to the petitioners are only an 'offer', if not accepted, cannot be thrust upon the petitioners under duress or coercion. NAB is authorized to inquire into or investigate any offence cognizable under the Ordinance, if the same is not based on 'mala fide', alien and extraneous considerations.
7. Now moving on to the authority of NAB to seek the transfer of inquiry or investigation from Anti Corruption department to NAB. Before we discuss the said authority of NAB to transfer and assume cognizance of a matter already pending with another department, we have to first note that the subject-matter of the present inquiry is the illegal allotment of public land, which clearly falls within the purview of the offence of corrupt and corrupt practices as envisaged under section 9 of the Ordinance. Having once determined that the matter in dispute is an offence cognizable by NAB under the Ordinance, we now move to analyze the scope of the authority vested in NAB to inquire or investigate offences cognizable by it under the Ordinance.
' Most essential is section 3 of the Ordinance, which reads as; "Ordinance to override other law.---The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force."
' The aforementioned overriding authority of the provisions of Ordinance is further supplemented by the vast power vested in Chairman NAB or an officer of the NAB duly authorized by him to; I. Even transfer pending criminal cases from any Court or Tribunal (section 16-A) to accountability Court; II. Call and seek information from any person, public or private, in furtherance of an inquiry or investigation (section-19); III. Initiate proceedings against a person by referring the matter for inquiry or investigation (section 18(c)); IV the inquiry or investigation of an offence to be the responsibility of the NAB to the exclusion of any other agency or authority unless any such agency or authority is required to do so by the Chairman NAB or any person authorized by him (section 18 (d)); V. Investigation of an offence under the Ordinance may if the Chairman NAB thinks fit be conducted in conjunction with any other agency or person (section 22 (a) and (b)); VI. Seek assistance, call for documentary evidence and information from any person, private or public, in connection with an inquiry or investigation pending before NAB (section 27); VII. And finally, any person who hampers the inquiry or investigation so conducted by NAB can be proceeded against and lead to penal consequences which may extend to ten years (section 31).
'In view of the vast powers vested in Chairman NAB or a person authorized by him to inquire into and investigate an offence cognizable under the Ordinance, it is but clear that firstly the provisions of the Ordinance have a overriding effect over all other prevailing laws, secondly, the responsibility of said inquiry or investigation of the said offences rests upon NAB in exclusion to any other agency or authority unless the Chairman NAB or any other person authorized by him decides otherwise, and finally, any person hampering the inquiry or investigation can be criminally proceeded against and sentenced to a punishment upto ten years imprisonment.
' Hence, the transfer of the present cases from the Anti-Corruption Department to NAB for enquiry is with authority and mandate of law.
8. In regard to the jurisdiction of this Court to interfere in an inquiry or an investigation, it is by now clear that this Constitutional Court has to refrain from interfering in such proceedings unless there is blatant ',mala fide' on the part of the inquiring or investigating authority, which is apparent from the record or the same lacks any legal sanction of law. The jurisdiction of a Constitutional Court to interfere in inquiries or investigations has been very aptly described in the authoritative judgment of the apex Court in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677), wherein it is held that:-- "The High Court has also no power of supervision or control over investigating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of 'all other Courts that are subordinate to it."
' If an investigation is launched mala fide' or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
' Keeping the 'ratio decidendi' of the above judgment as our guiding principle, this Court notes that interference by a constitutional Court in enquiries or investigations may be warrantable; firstly, if the enquiry or investigation being without legal sanction and secondly, if the same being based on mala fide'.
' In the present case, this Court finds that NAB had the legal sanction under the Ordinance to inquire or investigate the present complaint of misuse of public property by unlawful allotment of plots in the Project, which clearly falls within the scope of corruption and corrupt practices envisaged under section 9 of the Ordinance.
' As far as the second ground of mala fide' is concerned, alleging 'mala fide' is a double edged weapon. It can very easily throw the petition out of the realm of constitutional Courts jurisdiction and its maintainability. Ordinarily, proving 'mala fide' is difficult, moreso, when it to be proved from the record. More often than not, the need for recording of evidence comes in and in such eventuality the said petition cannot proceed in constitutional jurisdiction. The matter would then have to be resolved and adjudicated by an appropriate legal forum of competent jurisdiction.
Reliance in this regard can be placed on lqbal Haider v. Capital Development Authority (PLD 2006 SC 394), Government of West Pakistan v. Begum Agha Abdul Karim Shorash Kashmiri (PLD 1969 SC 14) and Ahmad Hassan v. Government of Punjab (2005 SCM R 186) and Afzal Motors Private Limited v. Higher Education, Archives and Libraries Department (PLD 2010 Peshawar 110).
' The matter does not end here, this Court forcefully reiterates that NAB is a statutory body, created for specific purpose and aim. No doubt NAB has been vested with vast power and authority. But with such vast powers comes more heavy burden and responsibility to ensure that the authority or discretion so vested in it is exercised responsibly and with care and is not abused in any manner, whatsoever. Thus, in cases relating to NAB, evidence on the record, should be minutely considered and liberally appreciated and if mala fide' or undue influence, threat or coercion is made out, even with slightest of evidence, then the said action is to be declared unlawful. Constitutional Courts should always come to the rescue of the aggrieved victims of such wanton actions. The standard so set to establish mala fide' against other executive authority, should not be strictly applied to cases relating to NAB.
9. In the present case, however, this Court notes that neither the persons against whom `mala fide' has been alleged are personally named, as respondents in the present petition, nor are the facts leading to the alleged 'mala fide' apparent on the face of the record of the present case.
10. Accordingly, for reasons stated hereinabove, all the four writ petitions, being devoid of legal merit, are dismissed.